My experience of significant disclosure failings in 2017

Disclosure failings by the police and CPS have been making the headlines recently and bear out what practitioners have known for some time. There is a problem not only of resources but also of the mindset of those whose job it is to ensure that material which may undermine the prosecution case or assist the defence is disclosed.

Last spring the historic sexual allegations trial I was starting had to be aborted before the first witness could give evidence, because persistent requests for disclosure relevant to the cross-examination of that witness finally resulted in the prosecution revealing they had withheld accounts of significant conversations between the police and the witness. Those conversations were recorded not on the MG6C – the police schedule of ‘unused’ material, (nor even on what is colloquially known as the sensitive schedule which the defence know of but don’t see), but a whole new schedule called by the ‘R and R’ schedule by the particular force – standing for ‘Retain not Reveal’. Outcome, a lengthy delay before retrial and a significant wasted costs order made against the CPS in favour of the defendant who was funding his own defence.

In the summer, a section 18 grievous bodily harm trial I was instructed in collapsed in between the prosecutor’s opening and the evidence of the principle witness, because of the Crown ignoring requests and court orders to disclose the defendant’s mobile phone download, or even to allow the defence to inspect the phone. When the download was finally disclosed, only a few hours before the witness was due to give evidence, what the defendant had told the police since his arrest was born out, and the Crown had to drop the case. Again, a significant wasted costs order made against the CPS has allowed the defendant to recover some of his self-funded costs but that does not ameliorate a period of custodial remand, loss of earnings and the stress of waiting for 8 months for proceedings to be resolved. It was a particularly expensive error for the tax payer because the CPS had also arranged a costly video link to be set up to Australia because the complainant was not prepared to return to England to give her evidence.

Only last week I went to court and had to explain to the Judge my concern at the disclosure failings in a case shortly due for trial, having discovered an independent witness account, which provided evidence which might properly cause a jury real doubt about the complainant’s assertions, had been ‘buried’ by the police.

So I listened with dismay to the DPP Alison Saunders recently speaking about this issue on Radio 4. Yes, in my recent example the defence did find out about the statement, but only by chance, and operating a system in that way substantially increases the risk of unfair trials and miscarriages of justice.

The DPP didn’t appear to accept that the situation was quite simply bad for justice, very bad for the accused, but also for complainants and witnesses, for the tax payer and for public confidence in the criminal justice system.

One final experience in 2017 demonstrates that the prosecution can also sometimes be damaged by the police’s unwillingness to carry out disclosure properly. At the end of a stranger sex attack trial police officers revealed that they had, in fact, been able to identify an unknown DNA profile found on the victim’s body but had not disclosed that fact, even to prosecution counsel. When asked, the victim told the police that she had, contrary to what she had told them previously, had consensual sexual activity with the person whose DNA was identified, hours before she was attacked by a stranger. The police did not disclose that evidence and sat through a trial allowing evidence to be put before the jury which only they knew was untrue, firstly that the victim had not had sex with anyone for several weeks prior to the attack and secondly that a DNA profile found on her body after the attack was unknown. The potential damage to the prosecution case could have been avoided if they had acted properly in respect of disclosure.

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